LAWS20058 - Australian Commercial Law

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Word Count Question 1
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Question 1
The three-part legal system was developed by Herbert Lionel Adolphus Hart who provided
that there are primary and secondary rules which forms a legal system of a country. This
paper will evaluate the legal system of India based on the three-part legal system of HLA
Hart. Furthermore, this rule will be implemented on the legal system of Australia to
understand how the country complies with these provisions. The Indian legal system is
influenced by the legal system of the United Kingdom which incorporates both primary and
secondary rules.1 The country is governed by a Constitution which has separated the powers
between executive and judiciary authorities. The Constitution of the country was
established in 1950, and it has been amended 101 times by the government. The rights and
authorities of lawmaking are given by the Constitution to the Parliament. Based on these
rights, the parliament can form new laws and amend the current regulations in the country.
The key sources of laws in the country include the constitution, case laws, customary laws,
and legislation. The Government of India has given the power to propose new laws in the
parliament which are focused on bridging the gap in the legal system of the country.2 After
the proposal of these laws, the ministers who are appointed by the public in the parliament
discuss such proposed law (bill) to decide with a majority whether they should accept them
or not.
The laws are made by two main parliamentary bodies in the country which include Rajya
Sabha and Lok Sabha. The process of lawmaking in the country is clearly highlighted by the
constitution which provides that the government proposes a bill which is then discussed by
both Rajya Sabha and Lok Sabha to determine whether it should be a law or not. After the
bill is accepted in both of these parliamentary houses, it is sent to the President of the
country.3 The bill becomes a law and applies throughout the country after the signature of
the President. The laws which comply by everyone are included in the Constitution and
other legislation of the country. The punishments for non-compliance with these provisions
1 Raj Kumar Bhardwaj and M. Madhusudan, "Online Legal Information System (OLIS) Leveraging Access To
Legal Information Resources In Indian Environment" (2016) 36(1) DESIDOC Journal of Library and Information
Technology.2 Rajvir Sharma, "Judiciary As Change Agent: Some Insights Into The Changing Role Of Judiciary In India" (2012)
58(2) Indian Journal of Public Administration.3 Raj Kumar Bhardwaj, "The Indian Judicial System: Transition From Print To Digital" (2013) 13(03) Legal
Information Management.

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are also provided in the laws. The judiciary power is divided into different courts in the
country by the Constitution under which there are separate courts for entertaining civil and
criminal matters. The highest judiciary entity in the country is the Supreme Court which has
the power of judicial review as given by article 32 of the Constitution. This also allows the
Supreme Court to check the actions of the government as well. The judgements of the
higher courts are applied on the small courts, and they are bound by those judgements. The
principles given HLA Hart in the three-part legal system apply to the legal system of India.
The rules of recognition principle provided the key fundamental policies which are
necessary to comply by both private and governmental authorities. In the case of Indian
legal system, the primary rules which apply on all citizens and governmental authorities are
clearly defined in the Constitution and other legislation which also highlight key rights and
liabilities of parties as well.4 These are primary rules which apply to everyone, and the
process of creating these laws are defined in the Constitution of the company as well. The
rules of change provided that the process of making changes in the law must be clearly
defined in the legal system. In the case of the Indian legal system, the provisions are clearly
mentioned regarding how to add, remove, amend or change the regulations in the country.
Moreover, proper authority is given to the Supreme Court to oversee the operations of the
government which assist in avoiding misuse of powers. The rule of adjudication provides
that the provision regarding adjudication must be clearly established in a country. It is the
case with the Indian legal system in which different courts are established for different civil
and criminal cases, and the judgement of higher courts are binding on lower courts.5 Parties
also have the right to make an appeal in the higher court against the decision of a lower
court. Based on these principles, it can be stated that the Indian legal system complies with
the provisions given under Hart’s three-part legal system.
In the case of Australia, the provisions of Hart’s three-part legal system apply as well. There
are many similarities in the Australian and Indian legal system since both of them are heavily
influenced by the English legal system. In Australia, the government is given the right to
proper the law in the parliament which is accepted after arguments regarding whether it
should be a law or not. The rules of changes are included in the Australian legal system since
4 Arthur Berriedale Keith, A Constitutional History Of India, 1600-1935 (Taylor and Francis, 2017).5 Yashomati Ghosh, "Indian Judiciary: An Analysis Of The Cyclic Syndrome Of Delay, Arrears And Pendency"
(2017) 5(1) Asian Journal of Legal Education.